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1978 DIGILAW 140 (MP)

Shakuntala Devi v. Sardar Kuldeepsingh

1978-02-16

H.G.MISHRA

body1978
Short Note : 1. The plaintiff non-applicant filed the present suit claimed permanent in junction on the basis that the suit wall was common wall and the defendants had no right to make any construction or alteration in the wall. The trial Court dismissed the application for grant of interim injunction, but in appeal the application was allowed and the defendants were restrained from making construction. Held : There are three pillars to sustain a grant of interim injunction viz. (1) prima facie case, (ii) balance of convenience and (iii) irreparable injury. All these three pillars must co-exist. If any of them is missing the relief of interim injunction cannot be sustained There being no prima facie case, no further discussion is necessary on the points of balance of convenience and irreparable injury. Still, the balance of convenience is not in favour of plaintiff-non-applicant. The defendants have spent huge sum of money in construction, admittedly, on their land, of a double storeyed building and it is only on the half of the wall which is beyond the red line (running through out the width of the wall in the sale deed dividing it into two equal parts, one part inside the red line, having been sold to the plaintiff and the other half part (remaining unsold). The defendant-applicants herein have submitted an application in writing to the effect that in the ultimate event of the Suit being decreed, the defendants will pull down the portion permitted to be constructed now. Without the construction being permitted the whole of the structure of the double storeyed building which has been constructed by the defendant-applicants is liable to be destroyed. The defendants are also ready to give an undertaking to the effect that in the event of the suit being ultimately decreed, in obedience of the decree they will pull down the construction on the half portion of the wall at their own expenses and will not claim any compensation in the matter. In view of the fact that a double storeyed building bas been constructed by the defendants involving huge expenditure of money, the balance of convenience lies in their favour. In view of the fact that a double storeyed building bas been constructed by the defendants involving huge expenditure of money, the balance of convenience lies in their favour. The comparative mischief which will result on account of withholding of the interim injunction will be negligible because the plaintiff has not come out with any such grievance, especially in view of the readiness to give undertaking of the nature indicated above, it will meet ends of justice if the defendants are allowed to make the construction of the disputed wall. The Managing Director Hindustan Aeronutics Ltd Balarnagar, Hyderabad and another v. Ajit Prasad, AIR 1973 SC 76 , Gulabchand Goppalal Sarawai v. Manikchand Gulabchand, 1960 JLJ 419 , Baborey Dina Nath v. Indramani Jatia and another, AIR 1964 All. 436 , referred to. Revision allowed.